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7.3.8.5 - Charge: Incest with parent, lineal ancestor or step-parent (From 1/7/17)

Click here to obtain a Word version of this document for adaptation.

When to use this charge

This charge concerns acts of sexual penetration involving the accused and the accused’s father, mother, step-father, step-mother or lineal ancestor (s50E).

Alternative charges

For alleged incest offences involving the accused’s own child or lineal descendant see Charge: Incest with children and lineal descendants (From 1/7/17).

For alleged incest offences involving the accused’s step-child, see Charge: Incest with step-child (From 1/7/17).

For alleged incest offences involving the accused’s brother, half-brother, sister or half-sister, see Charge: Incest with sibling or half-sibling (From 1/7/17).

The elements

I must now direct you about the crime of incest. To prove this crime, the prosecution must prove the following 4 elements beyond reasonable doubt.

One - the accused intentionally sexually penetrated NOC.[1]

Two - NOC is the accused’s [insert relevant family relationship, i.e. "father", "mother", "step-father", "step-mother", "grandfather" or "grandmother"].

Three - the accused knew that NOC was [his/her] [insert relevant family relationship].

Four - the accused was aged 18 or older at the time of sexual penetration.

I will now explain each of these elements in more detail.

Sexual penetration

The first element relates to what the accused is alleged to have done. The prosecution must prove beyond reasonable doubt that the accused intentionally sexually penetrated the complainant, NOC.

The prosecution seeks to prove this element by showing that NOA [describe relevant form of penetration, e.g. "put his finger into NOC’s anus"]. I direct you as a matter of law that if you find that NOA did this, then the prosecution has proved this first element.

[If relevant add:

[If the evidence or arguments have placed the intentional or voluntary nature of the acts in issue, add the following shaded section.][2]

For this element to be met, the act of [describe relevant act of penetration, e.g. "introducing his finger into NOC’s anus"] must have been done intentionally.

This means that you must find NOA not guilty unless the prosecution can satisfy you that [describe the finding that proves intention in the circumstance of the case, e.g. "NOA introduced his finger into NOC’s vagina deliberately, and not accidentally" or "NOA was conscious and not asleep and dreaming at the time of the penetration"].

[In vaginal penetration cases, add the following shaded section.]

The law says that the vagina includes the external genitalia – that is the outer or external lips of the vagina. So the prosecution can prove this element by proving that NOA introduced [identify body part or object] to any extent between the outer lips of NOA’s vagina.

[In cases involving alleged penetration in the context of a medical procedure or hygienic purposes add the following shaded section.]

However, according to the law, the introduction of an object or body part into a person’s [vagina/anus] does not always amount to sexual penetration. It is not sexual penetration if it is done in the course of a procedure carried out in good faith for medical or hygienic purposes. In this case, the accused submits [refer to relevant evidence]. It is for the prosecution to prove to you, beyond reasonable doubt, that the insertion of [name of object] by NOA into NOC’s [anus/vagina], was not done in the course of a procedure carried out in good faith for [medical/hygienic] purposes.

In this case [insert evidence and arguments relevant to proof of this element].

Relationship to the other participant

The second element that the prosecution must prove is that NOC is the [insert relevant family relationship] of the accused.

This matter is not in dispute and so you should have no difficulty finding that NOC is NOA’s [insert family relationship].[3]

Knowledge of relationship

The third element that the prosecution must prove is that the accused knew that NOC was [his/her] [insert relevant family relationship].

It has not been disputed that NOA knew that NOC was [his/her] [insert relevant relationship]. You should therefore have no difficulty finding this element proved.[4]

Age of the accused

The fourth element that the prosecution must prove is that the accused was aged 18 or older at the time of the sexual penetration.

In this case, it has not been disputed that NOA was at least 18 years of age at the time the alleged act of sexual penetration took place. The main issue in this case is [insert relevant issue].[5]

Defences

Non-consent of accused

[If the accused relies on the non-consent defence in Crimes Act 1958 s50H, add the following shaded section]

In this case, there is an additional matter the prosecution must prove before you can find NOA guilty of incest.

The prosecution must prove that the accused consented to the sexual penetration. That is, the prosecution must show that NOA freely agreed to [identify relevant conduct].

[If the evidence raises the possibility that one of the circumstances listed in Crimes Act 1958 s36(2) exists, add the following darker shaded section]

In order to show that NOA freely agreed to sexually penetrate NOC, the prosecution must also show that NOA:

[Insert the following statements as appropriate:

  1. Did not submit to the act because of force or fear of force, whether to NOA or to someone else;
  2. Did not submit to the act because of fear of harm of any type, whether to NOA or someone else or an animal;
  3. Did not submit to the act because NOA was unlawfully detained;
  4. Was not asleep or unconscious;
  5. Was not so affected by alcohol or another drug as to be incapable of consenting to the act;
  6. Was not so affected by alcohol or another drug as to be incapable of withdrawing consent to the act;
  7. Was capable of understanding the sexual nature of the act;
  8. Was not mistaken about the sexual nature of the act;
  9. Was not mistaken about the identity of any other person involved in the act;
  10. Did not mistakenly believe that the act was for medical or hygienic purposes;
  11. Said or did something to indicate consent; and
  12. Having given consent to the act, did not later withdraw consent to the act taking place or continuing.

Remember though that even if you accept that [refer to relevant s36(2) circumstance, e.g. NOA was not asleep or unconscious], you must still decide whether the prosecution has proved, beyond reasonable doubt, that NOA consented to the sexual penetration alleged. Finding that [refer to relevant s36(2) circumstance as described above] only removes one barrier to finding that NOA consented.

[Refer to relevant prosecution and defence evidence and arguments].

No history of care, supervision or authority

[If the accused relies on the defence under Crimes Act 1958 s50J(1), add the following shaded section]

For this offence, the law recognises a defence. There are two parts to this defence.

First, NOC must be NOA’s step-parent. This is not in dispute.

Second, NOA must not, at any time, have been under NOC’s care, supervision or authority. The prosecution disputes this.

As I told you at the start of the trial, the prosecution must prove the accused’s guilt. This means the prosecution must prove that the defence does not apply. In other words, the prosecution must prove that at some time NOA was under NOC’s care, supervision or authority.

[If care, supervision or authority is in issue and the prosecution relies on a prescribed relationship, add the following darker shaded section.]

Parliament has defined a number of relationships where a child is deemed to be under the care, supervision and authority of another person. This includes [name relevant relationships from s37 list].

In this case the prosecution alleged that NOC had been NOA’s [describe relationship]. [Insert prosecution evidence]. The defence responded [insert relevant evidence and/or arguments].

If you find beyond reasonable doubt that NOC had been NOA’s [identify relationship] [identify relevant time], the prosecution has proved this defence does not apply. If the prosecution has also proved the four elements of the offence then you may find NOA guilty of the charge of incest.

[If care, supervision or authority is in issue and the prosecution does not rely on a prescribed relationship, add the following darker shaded section.]

The words "care, supervision or authority" all describe different types of relationships where one person is in a position to exploit or take advantage of that relationship to influence a child to engage in an act of sexual penetration. You should take this into account when deciding whether the prosecution has proved that NOA was ever under NOC’s care, supervision or authority.

The relationship of care, supervision or authority does not have to be a formal one. There does not, for example, have to have been a formal agreement that NOC would take care of NOA. An informal relationship of care, supervision or authority is sufficient.

[If relevant, add: You do not need to find that the alleged act of penetration was actually connected with, or influenced by, the relationship of care, supervision or authority. It is sufficient if you are satisfied that at some time, NOA had been under NOC’s care, supervision or authority.]

In this case the prosecution alleged that NOA had been under NOC’s [care/supervision/authority]. [Insert prosecution evidence]. The defence responded [insert relevant evidence and/or arguments].

It is for you to determine, on the basis of all the evidence, whether the prosecution has proven, beyond reasonable doubt, that NOA had been under NOC’s care, supervision or authority at a time before the alleged offence. Unless the prosecution has proved that NOA had been under NOC’s care, supervision or authority at an earlier time, you must find NOA not guilty of incest.

[If the accused may be unaware of the facts giving rise to a relationship of care, supervision or authority, add the following darker shaded section][6]

The law states that NOA must know and be aware of the facts that give rise to a relationship of care, supervision or authority. For example, if NOA did not recognise that NOC had been his/her [describe relevant relationship], then the prosecution could not prove the defence does not apply. In other words, the prosecution could not prove NOA’s guilt.

[Insert relevant prosecution and defence evidence and arguments].

History of sexual activity

[If the accused relies on the defence under Crimes Act 1958 s50J(2), add the following shaded section]

For this offence, the law recognises a defence which may be termed "history of sexual activity".

The law says that a person does not commit this offence if NOC engaged in sexual activity with NOA when NOA was under 18 years of age.

In this case, the defence say [refer to relevant evidence and arguments]. The prosecution argue that you should reject this. [Refer to relevant evidence and arguments].

As I told you at the start of the trial, the prosecution must prove the accused’s guilt. This means the prosecution must prove that the defence does not apply. In other words, the prosecution must prove that NOC did not engage in sexual activity with NOA when NOA was under 18 years of age.

Summary

To summarise, before you can find NOA guilty of incest, the prosecution must prove to you beyond reasonable doubt:

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of Incest.

Notes

[1] If the charge involves the accused causing or allowing the complainant to sexually penetrate the accused, these directions must be modified accordingly.

[2] Because of how the offence is defined, the issue of intention is likely inseparable from the question of voluntariness. Where the issue is raised, the judge should direct the jury on the specific matters the jury must consider to find that the accused’s conduct was voluntary and intentional (e.g. disproof of accident or proof that the accused was conscious).

[3] If the relationship between the accused and NOC has been disputed, this section of the charge will need to be modified accordingly.

[4] If the accused’s knowledge of their relationship to the other party has been disputed, this section of the charge will need to be modified accordingly. If the defence raises evidence in rebuttal of the presumption in s50B, it is for the prosecution to prove knowledge of the relationship beyond reasonable doubt. There is no onus of proof on the defence.

[5] If the accused’s age has been disputed, this section of the charge will need to be modified accordingly.

[6] Warning! Judges should seek submissions from parties as to whether this direction is required, as it is adapted from caselaw developed in a different context.

Last updated: 19 March 2018

See Also

7.3.8 - Incest (From 1/7/17)

7.3.8.1 - Charge: Incest with child or lineal descendant (From 1/7/17)

7.3.8.2 - Charge: Incest with step-child (From 1/7/17)

7.3.8.3 - Charge: Incest with sibling or half-sibling (From 1/7/17)

7.3.8.4 – Checklist: Incest with child, lineal descendant, step-child or sibling (From 1/7/17)

7.3.8.6 – Checklist: Incest with parent (From 1/7/17)